Outline of Kenneth Himma’s article
The Philosophy of Law
(www.iep.utm.edu)
INTRODUCTION
Legal Philosophy: general philosophical analysis of law and legal institutions
1. ANALYTIC JURISPRUDENCE
Introduction:
Analytic jurisprudence: what distinguishes law as a system of norms from other systems of norms
Uses conceptual analysis
a. Natural Law Theory
Overlap Thesis: there is a necessary relation between the concepts of law and morality
Classical Naturalism (Aquinas, William Blackstone): the existence of law requires morality
Blackstone: 1 there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law.
Augustine: an unjust law is no law at all
Neo-naturalism (John Finis): the obligatory force of law requires morality
Unjust laws are legally valid, but are not obligatory (i.e., no justification for state coercion)
Lon Fuller: the existence of law requires a procedural morality consisting of eight principles
(P1) the rules must be expressed in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be prospective in effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent with one another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the rules must be administered in a manner consistent with their wording.
b. Legal Positivism (there is no conceptual relationship between law and morality)
i. The Conventionality Thesis (H.L.A. Hart): laws are grounded in social convention
ii. The Social Fact Thesis: laws are grounded in social facts
Austin: the relevant social fact is that the law is commanded by a sovereign willing to impose a sanction for noncompliance
Hart: every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law
iii. The Separability Thesis: there is no conceptual overlap between the notions of law and morality
Hart: “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”
Inclusive positivism (soft positivism): legal systems may incorporate moral constraints
Exclusive positivism (hard positivism): legal systems cannot incorporate moral constraints (Raz)
c. Ronald Dworkin's Constructivism
Rejects the social fact thesis
The correct legal principle is the one that makes the law the morally best it can be
A legal principle maximally contributes to such a justification if and only if it satisfies two conditions:
(1) the principle coheres with existing legal materials; and
(2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be.
2. NORMATIVE JURISPRUDENCE
a. Freedom and the Limits of Legitimate Law
i. Harm principle: the state may use its coercive power to prevent people from harming others
Mill’s principle of harm/liberty: government may restrict behavior only when it causes physical harm to others
Criticism of Mill: the law may be legitimately used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior.
ii. Legal Moralism: the state may use its coercive power to enforce society’s collective morality
Devlin: a shared morality is essential to the existence of society
iii. Legal Paternalism: the state may use its coercive power to prevent individuals from inflicting physical or severe emotional harm on themselves
Dworkin: the harm must be "far-reaching, potentially dangerous and irreversible"
iv. The Offense Principle: the state may use its coercive power to prevent individuals from offending others
Feinberg: an unpleasant mental state that is wrongfully caused
b. The Obligation to Obey Law
Problem with positivism: if the foundation of the law is simply recipes for making law, then the is no moral obligation to obey a law
(1) Gratitude argument (Plato): by accepting government’s benefits, we accept a duty to obey out of gratitude
Criticism: since the state does not give citizens a choice with respect to such benefits, the mere enjoyment of them cannot give rise to a duty of gratitude
(2) Fair play argument (Rawls): by accepting government’s benefits, we accept a duty to obey out of fair play
Criticism: same as gratitude criticism
(3) Implied consent argument (Locke): by accepting government’s benefits, we implicitly agree to follow the rules
Criticism: same as gratitude criticism
(4) General utility argument: we have the duty to obey in view of the negative consequences of general disobedience
Criticism: by this reasoning, we have an obligation not to eat dinner at five o'clock, for if everyone did so, certain essential services could not be maintained
c. The Justification of Punishment
(1) Retribution: punishment is deserved
Criticism: this doesn’t imply that the state is responsible for administering punishment
(2) Utilitarian: punishment has social benefit
(2) deterrence: punishing an offender deters would-be criminals
Criticism (Kant): this treats people as mere means
(3) prevention: keeps the offender from repeating crimes
Criticism: this can be achieved without inflicting discomfort
(4) rehabilitation: improves the moral character of the offender
Criticism: same as prevention criticism
(3) Restitution: compensate the victim
Criticism: blurs the compensation with punishment (compensation focuses on the victim, punishment on the offender)
3. Critical Theories of Law
a. Legal Realism: all law is made by human beings and is accordingly subject to human imperfections
Judicial decision is guided far more frequently by political and moral intuitions about the facts of the case (instead of by legal rules) than theories like positivism and naturalism acknowledge
Local Indeterminacy Thesis: the class of available legal materials is insufficient to logically entail a unique legal outcome in most cases worth litigating at the appellate level
Discretion Thesis: in such cases, judges make new law in deciding legal disputes through the exercise of a lawmaking discretion
b. Critical Legal Studies: all law is politics and tends to serve the interests of the wealthy
Application of the Frankfurt school of Marxism (i.e., “critical studies”) applied to law
Radical indeterminacy thesis: ideological struggles in society result in profound inconsistency permeating the deepest layers of the law; thus, a judge can justify any of a number of conflicting outcomes
c. Law and Economics:
Efficiency theory of the common law (Posner): "the common law is best (not perfectly) explained as a system for maximizing the wealth of society”
Normative implication: the law should strive to maximize wealth
d. Outsider Jurisprudence: law is structured to promote the interests of white males and to exclude females and persons of color
Gender: patriarchal assumptions have shaped the content of laws
Race: the perspectives of persons of color are systematically excluded from mainstream discourse among practicing lawyers, judges, and legislators